0120142812
10-03-2016
Levi S.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Levi S.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120142812
Agency No. NRCS-2013-00454
DECISION
On August 4, 2014, Complainant filed an appeal from the Agency's July 7, 2014, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUE PRESENTED
The issue presented in this case is whether the Agency erred in finding that Complainant did not establish that he was discriminated against based on his national origin and his son's disability when he was not reassigned and promoted to the Agency's southern California office.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Soil Conservationist, GS-11 at the Agency's National Resources Conservation Service facility in Indio, California. Initially, Complainant worked as the District Conservationist (GS-12) in Eastern Riverside County, which is near an isolated irrigated valley along the Colorado River. In 2002, however, Complainant's son was diagnosed with a serious respiratory illness. He was admitted to San Diego Children's Hospital. Complainant was told that his son would have a long road to recovery; therefore, Complainant requested a transfer to San Diego to be with his family. His request was denied by his supervisor (S1) because the San Diego office was too crowded and did not have space for expansion. Complainant was told that he had to apply for jobs in other areas. Complainant located a GS-11 position in Indio, California. Complainant was given the position without having to apply for it but was instructed to write a letter accepting the lower grade to relieve the Agency from any liability. Complainant maintained that he was desperate to be near his family so he moved to Indio which is near Palm Springs.
Thereafter in 2010, Complainant again requested that he be transferred to San Diego so that he could help with the treatment of his son. When he did not receive the Agency's response, Complainant requested Alternative Dispute Resolution in order to resolve the matter. Complainant maintained that management offered him a job near Fresno, which they knew he would not accept. On November 16, 2011, Complainant and management signed a Workplace Agreement. According to the agreement, Complainant was to work with the Human Resources staff to determine the appropriate training courses to meet the requirements for his current position and to provide appropriate documentation showing successful completion of the training within 18 months. The Agency agreed to support Complainant's return to a GS-12 position for a period of 18 months, reimburse his training costs, permit him a flexible work schedule, and permit him compensated work time to complete the training.
Complainant argued that requests from white employees for reassignment were routinely granted, while his requests were not. For example, Complainant maintained that a white female working in Indio, California requested a transfer to San Diego and her request was granted. Later, a white male that worked in Victorville, California requested a transfer to Indio, California to be closer to his family and his request was granted. Complainant also alleged that the Agency did not fulfill its commitments under the Workplace Conflict Agreement in this case, which required that management would assist him in obtaining a GS-12 position for which he applied and for which he was qualified. Complainant indicated that he was told to apply for three open positions in southern California but one position never opened and the other two were given to white employees who were displaced.
Complainant acknowledged that he did not have evidence of discrimination based on personal observation but he did observe that the former State Conservationist created range and wetland positions that were not needed in order to accommodate white employees, even to the point of upgrading them from GS-11 to GS-12 positions. He also indicated that the Agency had frequently transferred employees for personal reasons
On April 12, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Mexican) and his son's disability (Acute Respiratory Distress Syndrome, Depression and Obsessive Compulsive Disorder) when on November 29, 2012, management officials refused to reassign him to a GS-12 position as a Soil Conservationist in the Southern California area.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The Agency maintained that Complainant argued that he was treated differently from white employees whose reassignment requests were granted, while his was not. The Agency explained that the transfers Complainant used as examples of favorable treatment for white employees dated from between 2002 and 2004 and were too remote in time to establish a nexus with his situation. Additionally, the Agency noted that Complainant successfully transferred in 2002. Consequently, the transfers of these cited employees did not tend to create an inference of discrimination. Further, with regard to Complainant's claim that he was disadvantaged because a former State Conservationist created new positions for employees requesting transfers, even when those positions were unnecessary or surplus. The Agency explained that unlike the other employees who sought reassignments, Complainant was seeking not only a lateral transfer, but a promotion. The Agency also indicated that the financial situation of the Agency after 2010 was quite different than it was a few years earlier. In particular, the abolition of the RC&D program due to budget cuts required the transfer of a large number of displaced employees who received priority over other internal job seekers.
With respect to Complainant's allegation that the Agency did not fulfill its commitments under the Workplace Conflict Agreement, which required that manager l and manager 2 assist him in obtaining a GS-12 position for which he applied and for which he was qualified, the Agency noted that the evidence was uncontested that the Complainant did not apply for any positions during the 18-month period for which the agreement was effective. Although Complainant argued that no vacancies meeting his stated criteria were advertised during this 18-month period, the Agency maintained that the Agreement did not guarantee any such vacancies. The Agency also maintained that there was no evidence of bad faith or discriminatory treatment in that, priority reassignments of employees from the discontinued RC&D program had to be made, and the Agency fulfilled its other commitments to Complainant, i.e., compensatory leave and reimbursement for special classroom instruction. According to the Agency, implicit in the agreement was that any open vacancies were subject to availability within the boundaries of the narrow criteria required by Complainant. Finally, the Agency maintained that Complainant did not present any evidence that the Agency's actions were due to discriminatory intent.
CONTENTIONS ON APPEAL
On appeal, Complainant argues, among other things, that the Agency did not support the spirit of the Workplace Conflict Agreement in which it was supposed to support his petition for relocation to southern California at the GS-12 level. Complainant also maintains again that over the years he has seen several people easily transferred while he had to struggle to obtain a transfer.
In response, the Agency, in pertinent part, contends that Complainant has not provided any evidence which indicates that the Agency erred in finding that he was not subjected to discrimination.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that, even assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency has articulated legitimate nondiscriminatory reasons for its actions, namely that Complainant was granted an initial reassignment in 2002 which the record shows was during the time that reassignments were freely approved. This was also during the same time period that Complainant argued that white employees were freely reassigned, as such, we find that discriminatory animus was not established because he was treated the same as his white colleagues. Thereafter, however, the Agency maintained that in 2010, it lost funding and vacant positions were used for employees who had been displaced. Consequently, the Agency was unable to freely reassign its employees. To show pretext, Complainant argued that the spirit of the Work Place Agreement that he signed with the Agency was not supported by management as they did not provide any opportunities for his relocation. Even if this were true, we do not find that it would, by itself, show that discriminatory animus played a role in the failure to reassign Complainant. In this regard, we note that Complainant did not apply to any vacant positions nor did not show that there were vacant positions available to which he could have been transferred. Moreover, Complainant did not show that any comparator employee was reassigned and promoted during this time period. We find that Complainant simply did not demonstrate that the Agency's reasons were pretext for discrimination.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination based on national origin or disability by association.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__10/3/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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